A Modern Public Procurement Law For Trinidad And Tobago A Necessity For Good Governance
This article highlights features of the submission of the Private Sector/Civil Society Group to Government for a modern procurement law as specified in the Draft Public Procurement and Disposal of Public Property Bill available at www.jcc.org.tt/procurement.
The impact of the proposed law will –
- systemically bring all agencies spending public money under a single, overarching legal and regulatory framework that effectively covers all stages of the procurement process;
- provide effective mechanisms for oversight and control;
- require appropriate transparency of the value and impact of transactions involving public money;
- ensure, as far as possible, integrity in the public procurement system;
- meet international anti-corruption standards consistent with our international obligations;
- promote the prevention of corruption and the consequent increase in investment.
Brief Description of Bill
The crux of the Bill is the mandatory compliance with the principles of good governance – Accountability, Transparency and Value for Money and objectives of Ethics, Efficiency, Fairness and Competition by all involved in a public procurement transaction. The Bill does not specify detailed rules and procedures to be followed by procuring agencies, but provides for the implementation of mandatory National Procurement Guidelines.
The Guidelines will be developed by an Independent Procurement Regulator in consultation with the National Procurement Advisory Council. The Council will comprise fourteen (14) persons including representatives of –
(i) private sector organizations,
(ii) organizations appointed by the President to represent civil society,
(iii) the public sector including the Ministry of Finance and the Tobago House of Assembly.
This stakeholder participation is viewed by the Chamber as critical in the interest of good governance.
The responsibility for the effective operation of the overarching system in the Bill therefore resides in the Procurement Regulator who will directly account to Parliament. The accountability for the actual acquisition of property and services and the disposal of property acquired with public money will reside with public sector agencies and their respective authorized purchasers. These agencies will customise details of their respective procurement practices in Agency Handbooks. These Handbooks may be designed for different types of categories of transactions such as those pertaining to construction, consultancy services and Information Technology. The Handbooks will contain agency Instructions which will include details of purchasing authorizations, and be publicly available. Consequently, the Bill will require that all parties to a transaction involving public money for the acquisition of property and services or the disposal of public property to ensure that their conduct, processes and documentation conform to the objectives of:
- Economy, efficiency and competition;
- Ethics and fair dealing according to the highest standards of probity and professionalism;
- Promotion of national industry in a manner that conforms to the international obligations of Trinidad and Tobago; and
- Sustainable development taking into account the social return on investment.
The Bill thus enables the incorporation of existing procedures into the proposed legal and regulatory framework once the content is consistent with the Principles and Objectives.
In addition to developing the mandatory Guidelines in consultation with the National Procurement Advisory Council, the Procurement Regulator will also have the function of –
- enabling agencies to explore alternative service delivery options;
- promoting flexible and accountable systems for procurement;
- encouraging a streamlined Government purchasing framework;
- implementing a procurement system to foster small to medium enterprises;
- providing best practice advice on the conduct of procurement including promoting
- auditing and reviewing the procurement system to ensure compliance with the Operating Principles and Objectives which will require generally the monitoring of award and implementation of transactions.
The Procurement Regulator will also be required to prepare an Annual Report to be submitted directly to Parliament identifying inter alia:
- the strengths and weaknesses of the procurement system and steps taken to rectify any weaknesses;
- the total value of contracts awarded by agencies so that Parliament can get an idea of the amount of public money involved in procurement; and
- outcomes of investigations, and lessons learnt which are, to be or have been, fed back into the procurement system through amendment of the Guidelines.
The Procurement Regulator will be supported by a statutory body to be known as the Office of the Procurement Regulator. The expenses of both offices are to be a charge on the Consolidated Fund.
The Bill also provides for a Public Procurement Commission to treat with irregularities and complaints of non-compliance with the Operating Principles, Objectives and Guidelines. The members of the Commission are to be appointed by the President and are answerable to Parliament.
The Commission has the powers of a Commission of Enquiry as if it were a Commission properly constituted under the Commissions of Enquiry Act, Chapter 19:01. The sanctions it may employ are to order a suspension of the contract pending the hearing in a court of law or to find the transaction to be in breach of the Operating Principles and Guidelines resulting in it being deemed illegal. It is noted that any decision it makes is subject to the Judicial Review Act, 2000. However, persons bringing frivolous complaints to this body will be penalized.
Apart from the accountability framework the Bill also prescribes penalties for non-compliance with the Operating Principles, Objectives and Guidelines: a fine of $500,000 and imprisonment for seven (7) years where no other sanction is prescribed. As these penalties indicate an indictable offence, the Bill ensures the applicability of the Proceeds of Crimes Act, 2000. This may be used by the State for the tracing of assets to reclaim public money in the event that there is a breach of the Act.
Where a transaction is found either by a court or by the Public Procurement Commission to be in breach of the Act it is prescribed to be illegal and consequently void – the common law result of a contract in breach of public policy.
Where parties comply with the Operating Principles, Objectives and Guidelines it is highly unlikely there will be recourse to the Public Procurement Commission. It is expected that recourse to the Public Procurement Commission will occur after the complaints mechanism included as a standard term and condition of the contract which encompasses mediation and arbitration. This grievance procedure should encourage parties to resolve their differences within the terms of the contract.
However, nothing prevents the institution of proceedings in the High Court for an action for breach of contract or judicial review. It is expected in such a case that the Court would expect existing complaints mechanism to be exhausted prior to the institution of proceedings.
It is the contention of the Chamber that the implementation of this draft Bill as submitted by the Private Sector/Civil Society Group should further promotes good governance and by extension manifest in a more vibrant economy. By implementing this law the Government will be keeping good faith with its promise to implement a modern public procurement law thereby strengthening good governance
Extracted From:Trinidad & Tobago Chamber of Industry & Commerce.